Kerr and Repatriation Commission - [2000] AATA 773

DECISION AND REASONS FOR DECISION [2000] AATA 773

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/148

GENERAL ADMINSTRATIVE DIVISION        )
           Re      KERRY KERR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date1 September 2000
PlaceSydney

Decision      (a)      The decisions under review are set aside; (b)    The decisions are substituted as per paragraph 62 of these Reasons; and (c) The matter is remitted to the Respondent for assessment and pension calculation.
  [Sgd] Dr J D Campbell
   Member

CATCHWORDS
Veterans' Entitlements – operational and defence service – acute pancreatitis - alcohol abuse – faulty liver – hypertension – chronic anxiety state with depression – acceptance/non acceptance of claimers disabilities
Veteran's Entitlements Act 1986 sections 120, 120A and 120B
Repatriation Commission v Deledio (1998) 83 FCR 82
Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

1 September 2000 Dr J D Campbell

Mr Kerry Kerr ("the Applicant") in this matter seeks a review of two decisions of the Repatriation Commission ("the Respondent") dated 6 August 1997 and 27 August 1997. In the first decision the Respondent declined the Applicant's claim for chronic anxiety state with depression. In the second decision the Respondent declined the Applicant's claim for acute pancreatitis, fatty liver and hypertension. Both decisions were subject to a review by the Veterans' Review Board, which in a decision dated 15 December 1998 affirmed both decisions under review.

A hearing was held before the Tribunal on 28 January 2000, at which the Applicant gave evidence. The Applicant was represented by Mr Dawson, a solicitor. The Respondent was represented by Ms Doggett, an advocate from the Department of Veterans' Affairs. Dr Lewin, a psychiatrist, gave oral evidence before the Tribunal. Written closing submissions were received on behalf of the Applicant on 7 February 2000 and on behalf of the Respondent on 18 April 2000. No further submissions in reply were received from the Applicant.

The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – 32 pages 1 - 155
Medical Report of Dr Keshava dated 8 July 1999         Exhibit A1
Two letters from Mr G Maier dated 23 October 1999 and 28 October 1999 Exhibit A2
CT Report from Dr Sachinwalla dated 16 December 1999     Exhibit A3
Medical Report of Dr Lewin dated 14 July 1999           Exhibit R1
Report of Associate Professor Grey dated 4 January 2000     Exhibit R2
Clinical Notes of Dr Malouf re Applicant Exhibit R3
Clinical Notes from Sutherland Hospital re Applicant    Exhibit R4
Clinical notes from Shell Occupational Health Centre and Dr Malouf re Applicant dated 23 September 1999     Exhibit R5
Medical Service Records re Philip John Rapinett         Exhibit R6

ISSUES:

The relevant issues to be decided are
(a)      whether the Applicant satisfies the relevant Statement of Principles ("SOPs") in relation to:
(i)        generalised anxiety disorder;
(ii)       depressive disorder;
(iii)      alcohol abuse;
(iv)      pancreatitis;
(v)       hypertension;
(b)      whether the Applicant's fatty liver is alcohol caused, there being no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kerr and Repatriation Commission

Details

AGLC: Kerr and Repatriation Commission [2000] AATA 773
Case: [2000] AATA 773
Decision Date: 1 September 2000

CaseChat Overview and Summary

In the case of Repatriation Commission v Kerr, the applicant sought a review of the decision of the Repatriation Commission, which rejected his claims for certain disabilities under the Veterans' Entitlements Act 1986. The applicant's claims included chronic anxiety state with depression, acute pancreatitis, fatty liver, and hypertension, all allegedly resulting from his operational and defence service. The Repatriation Commission argued that the applicant's disabilities were not causally related to his service, particularly his history of alcohol abuse.

The key legal issues the court needed to decide were whether the applicant's claimed disabilities were war-caused or defence caused, and if his history of alcohol abuse was related to his service. The court also had to consider the credibility of the applicant's evidence regarding his alcohol consumption and its impact on his health.

The court examined the applicant's history of alcohol use, which began in the early years of his service in the navy and continued post-service. The applicant's inconsistent statements about his alcohol intake were noted, but the court found that his overall history of alcohol abuse, as presented to the Tribunal, reflected a more probable account. The court accepted the applicant's reasons for withholding full information about his drinking habits, concluding that his alcohol abuse was indeed related to his service. The court also found that the applicant's claimed disabilities, particularly acute pancreatitis and fatty liver, were linked to his alcohol consumption. Consequently, the court upheld the Repatriation Commission's decision to reject the applicant's claims for these disabilities.

The final orders of the court were that the appeal against the Repatriation Commission's decision be dismissed, with the court affirming the Commission's findings that the applicant's claimed disabilities were not war-caused or defence caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It was further agreed between the parties that the Tribunal would decide on the appropriate diagnosis and whether or not the nominated condition was accepted or declined, with the matter being remitted to the Respondent for assessment and pension calculation where appropriate.BACKGROUND: On 2 December 1996 the Applicant lodged a claim nominating his disabilities as anxiety and back problems, the former disability arising from a traumatic event in South Vietnam and the latter from a motor vehicle accident (T6). The claim for chronic anxiety state with depression was refused by the Respondent on 6 August 1997 (T13). On 11 May 1997 the Applicant lodged a claim nominating his disabilities as pancreas problems, liver dysfunction, haemorrhoids and hypertension, all being associated with excessive alcohol consumption (T8). The Applicant's claim for acute pancreatitis, fatty liver and hypertension were refused by the Respondent on 27 August 1997 (T18). The claim for haemorrhoids was accepted by the Respondent (T18). The Applicant appealed these two decisions and on 15 December 1998 the Veterans Review Board affirmed the decisions that chronic anxiety state with depression, acute pancreatitis, fatty liver and hypertension were neither war-caused or defence caused.EVIDENCE - APPLICANT: The Applicant told the Tribunal that he left school at age 15 and after two years in the merchant navy joined the RAN at age 17 in 1965. After recruit training, The Applicant stated he spent 12 months on general duties aboard ships, before commencing in boiler rooms where he remained until hearing the navy in 1974. The Applicant described his alcohol consumption in the following manner:·No alcohol prior to service;·1 – 2 cans a day after joining the navy;·4 – 6 cans a day in the period 1965 - 70;·8 cans a day in the period 1970 – 74. After leaving the Navy in 1974, the Applicant stated that he joined his father in the hotel industry and continued to consume considerable quantities of beer, scotch and wine. In 1978 the Applicant stated that he joined Shell Refinery as a plant operator and that he continued to drink, although he knew it to be dangerous to both his own health and through his actions to the health of others. Over time it became his habit to have twelve cans before work and he further developed the habit of binge drinking for three days every two to three weeks, during which he would consume 24 cans over 12 hours plus scotch and wine before becoming ill. His last such episode was prior to Christmas and since then to the day of hearing he has consumed 3 slabs of beer and scotch. The Applicant stated that often he has been unable to attend work because of alcohol, and that after 22 years with Shell he has only six days sick leave left. On posting to Thailand with Shell in early 1995, the Applicant stated that he drank continuously, using beer to overcome the conditions and that this was a continuous behaviour pattern. The Applicant admitted that he had not always been open about his drinking problems, giving different answers in an attempt to hide his problem from his employers. In particular the Applicant stated that if he had disclosed his alcohol problem at the time of his illness in Thailand it would have finished his career with Shell. Accordingly he denied he had a problem at this time and continued to deny it when he was repatriated to Australia. In 1996 the Applicant stated that the Company Medical Officer suggested he do something about his drinking and in June/July 1999, the Applicant stated that he told the Company Medical Officer that he was an alcoholic.

Evidence

Evidence Before The Court

The Applicant appealed these two decisions and on 15 December 1998 the Veterans Review Board affirmed the decisions that chronic anxiety state with depression, acute pancreatitis, fatty liver and hypertension were neither war-caused or defence caused.EVIDENCE - APPLICANT: The Applicant told the Tribunal that he left school at age 15 and after two years in the merchant navy joined the RAN at age 17 in 1965. After recruit training, The Applicant stated he spent 12 months on general duties aboard ships, before commencing in boiler rooms where he remained until hearing the navy in 1974. The Applicant described his alcohol consumption in the following manner:·No alcohol prior to service;·1 – 2 cans a day after joining the navy;·4 – 6 cans a day in the period 1965 - 70;·8 cans a day in the period 1970 – 74. After leaving the Navy in 1974, the Applicant stated that he joined his father in the hotel industry and continued to consume considerable quantities of beer, scotch and wine. In 1978 the Applicant stated that he joined Shell Refinery as a plant operator and that he continued to drink, although he knew it to be dangerous to both his own health and through his actions to the health of others. Over time it became his habit to have twelve cans before work and he further developed the habit of binge drinking for three days every two to three weeks, during which he would consume 24 cans over 12 hours plus scotch and wine before becoming ill. His last such episode was prior to Christmas and since then to the day of hearing he has consumed 3 slabs of beer and scotch. The Applicant stated that often he has been unable to attend work because of alcohol, and that after 22 years with Shell he has only six days sick leave left. On posting to Thailand with Shell in early 1995, the Applicant stated that he drank continuously, using beer to overcome the conditions and that this was a continuous behaviour pattern. The Applicant admitted that he had not always been open about his drinking problems, giving different answers in an attempt to hide his problem from his employers. In particular the Applicant stated that if he had disclosed his alcohol problem at the time of his illness in Thailand it would have finished his career with Shell. Accordingly he denied he had a problem at this time and continued to deny it when he was repatriated to Australia. In 1996 the Applicant stated that the Company Medical Officer suggested he do something about his drinking and in June/July 1999, the Applicant stated that he told the Company Medical Officer that he was an alcoholic. The Applicant stated that it is his practice to buy alcohol to drink at home and each week he would spend $100 or more on 2 slabs of beer, scotch, port, and wine. Further he always carries a flask of scotch, never drinks at work and usually fills his flask every one to two weeks. In response to questions asked in cross examination, the Applicant confirmed his service alcohol history as described earlier, and further commented that he had experienced ongoing difficulties with weight control. His weight has varied generally between 92 and 108 kilograms, but during his Thailand experience, his weight decreased from 116 kilograms to 85 kilograms. The Applicant considered that his weight problems were associated with an unhealthy lifestyle of overeating and insufficient exercise during his navy service. The Applicant acknowledged that his local doctor, Dr Malouf, had warned him about the dangers of his drinking. Even so, the Applicant stated that he had attended work drunk on occasions (over the last twelve months, one day a month), and that he had not been subject to disciplinary action at work because of his drinking (no policy of work place breathtesting) and that he had never been charged with a drug or alcohol offence.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Respondent contends that the Applicant does not suffer from alcohol abuse or dependence causally related to service and hence such a claim relating to alcohol-induced pancreatitis must fail. In the Respondent's argument, even if a hypothesis was raised, and this is not pointed to by the evidence, the causal link between alcohol and pancreatitis has not been demonstrated as future drinking of alcohol has not resulted in further episodes of pancreatitis. In this regard, the Respondent relies upon the opinion of Dr Lewin.CONSIDERATIONS AND FINDINGS: This matter, in the Tribunal's view, is much dependent upon whether the history as provided by the Applicant on his service, his use of alcohol and the circumstances of his repatriation from Thailand are accepted. The Tribunal has listened and read from the Respondent's submission that there may be a question as to whether the two events described by the Applicant did occur. In this regard, the Tribunal, in noting the statement of Mr Maier and the medical records of Mr Rapinett, finds that the incident in the boiler room on HMAS Brisbane ("the boiler room incident") and the sailor jumping over board from HMAS Brisbane ("the sailor over board incident") did occur during a period of operational service in 1971. Further the Tribunal notes that the independent material, namely the two exhibits A2 and R6, provides information which is consistent with that related to the Tribunal by the Applicant. In turning to the issue of the Applicant's history of alcohol use, the Tribunal notes the history as given to the Tribunal by the Applicant, the history as nominated by the Applicant to the Respondent (T10, pages 48-49), and the history of alcohol use as recorded by Dr Keshava. These have been detailed earlier in this decision. The Applicant told the Tribunal that on transfer to Thailand his consumption of alcohol, mainly beer, was a continuing issue, and that he drank to overcome the conditions. Further the Applicant stated that when he was admitted to hospital in Thailand with his acute abdominal condition in June 1995, he admitted to a minimal consumption of alcohol (3 cans of beer per day) and that he continued to maintain this quantity of consumption for the period in question with doctors on his medical evacuation to Australia. The Tribunal notes that the Applicant considered it necessary to provide this inconsistent information on the premise that full disclosure of his alcohol history would have finished his career opportunities with Shell, his employer. The Tribunal, in considering the issue of alcohol use by the Applicant, is aware that Dr Lewin is of the opinion that the history as presented by the Applicant is contrived and believed the Applicant to have been guiding him through a prepared script. The Tribunal in considering all the evidence, including the Shell Occupational Health Centre notes (particular items referred to earlier in medical evidence) finds that, while there are obvious inconsistencies between what the Applicant has told the Tribunal and what he has told the doctors and his employer, the history of alcohol use by the Applicant as he has told to the Tribunal reflects the more probable history of alcohol usage. In arriving at such a finding the Tribunal has placed weight on the Applicant's history of alcohol use, the opinion of Dr Keshava and some particular references within Exhibit R5, namely 'can binge' in October 1993 and 'liver problems?' in June 1991. The Tribunal, in noting Dr Lewin's opinion, acknowledges that there is an issue concerning the Applicants inconsistent statements regarding his alcohol intake in Thailand and subsequent reiteration. The Tribunal does, however, accept the Applicant's reasons for withholding the information and finds, in the absence of any substantive evidence to the contrary, that the Applicant has a long history of alcohol abuse commencing in the early years of his service in the navy. It is the Tribunal's finding that this is ongoing and is characterised by periodic bursts of drinking with periods in-between of maintenance and, at times, minimal drinking. It would appear to the Tribunal that there has been an increased ability by the Applicant to control his drinking upon his return from Thailand.